Rangamani d/o Thankappan v. Secretary to Government of Kerala (Home Affairs) & ors

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 4TH DAY OF APRIL 2012/15TH CHAITHRA 1934 ## WP(Crl.).No. 93 of 2012 (S) -------------------------------------------- PETITIONER(S): ---------------------- RANGAMANI D/O.THANKAPPAN, NARAKATHUPARAMBIL HOUSE NANDHIPARAMBU COLONY, ALANGAD VILLAGE ERNAKULAM DISTRICT. BY ADV. SRI.K.S.RAJEEV (ALUVA) RESPONDENT(S): ----------------------- 1. SECRETARY TO GOVERNMENT OF KERALA (HOME AFFAIRS) GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM- 695001. 2. THE DISTRICT MAGISTRATE CIVIL STATION, KAKKANADU, ERNAKULAM-682014. 3. ADDITIONAL SECRETARY TO GOVERNMENT HOME (SST) DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695001. BY ADDL. DGP SHRI K. I. ABDUL RASHEED. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 04-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX IN W.P.(CRL).NO.93 OF 2012 S PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF DETENTION ORDER PASSED BY THE SECOND RESPONDENT DATED 24.10.2011. EXT.P2 TRUE COPY OF CONFIRMATION ORDER PASSED BY THE FIRST RESPONDENT DATED 9.1.2012. EXT.P3 TRUE COPY OF REPRESENTATION SUBMITTED BY THE DETENU. RESPONDENTS' EXHIBITS: NIL. ## _**//TRUE COPY//**_ _**PS TO JUDGE**_ **K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ----------------------------------------W.P.(CRL). NO. 93 OF 2012 S ------------------------------------------** **Dated this the 4[th] April, 2012** ## **JUDGMENT** ## **K.M. Joseph, J.** Petitioner is the sister of the detenu who is detained under the provisions of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as the Act). 2. We heard the learned counsel for the petitioner and the learned Addl. DGP. Learned counsel for the petitioner would address the following arguments before us: (1) First of all, he would say that the representation submitted by the detenu has not been considered. In this connection, he referred us to Ext.P2 which is an order dated 09.01.2012 by which the order of detention is confirmed by the Government. It is submitted that there is no reference at all to the representation or a decision thereon. Therefore, the representation _**W.P.(CRL).NO.93/12 S**_ _**2**_ was not considered. (2) He would submit that there is gross delay in the disposal of the representation even assuming that the representation was disposed of. This he submitted on the basis of the stand of the Government that the representation was carefully considered and communicated by Government letter dated 15.11.2011. According to him, the delay is not explained. - (3) There was no communication of the decision. He would - submit that it is only mentioned that a letter is communicated. (4) There is undue delay in Government passing Ext.P3 v. order. In that connection, he relied on the Judgment in Sarojini Union of India (2009 (4) KLT 436). 3. Per contra, learned Addl. DGP would submit that the representation was indeed considered and the fact that it is not referred to in Ext.P2 order will not advance the case of the petitioner. As far as the delay is concerned, he would submit that there were justifiable reasons. An Additional Affidavit is also filed _**W.P.(CRL).NO.93/12 S**_ _**3**_ seeking to explain the delay. As far as the contention that the decision was not communicated, he made available the file to show that the detenu had acknowledged the receipt of the decision. He would further submit that what is stated in the Counter Affidavit that the letter was communicated is actually the decision, and that was borne out from the communication available in the files which is acknowledged by the detenu also. As far as the question of there being delay in Ext.P2 order being passed, he would submit that the petitioner may not be justified in relying on the Judgment of this Court. 4. After having heard the learned counsel for the petitioner and the learned Addl. DGP, we are of the view that there is no merit in the contentions of the petitioner. The first question to be considered is whether the representation was actually considered. We have been taken through the file. The file would indeed show that there was a decision taken on the representation. The mere fact that it was not reflected in Ext.P2 order of confirmation, _**W.P.(CRL).NO.93/12 S**_ _**4**_ cannot mean that the representation was not considered. 5. The further more important question is whether there is delay in the disposal of the representation. Following is the Additional Affidavit filed seeking to explain the delay: _“3. With regard to the disposal of the representation of the detenu, it is humbly submitted that the representation dated 26.11.2011 of the detenu was received by Government only on 01.12.2011. The representation was forwarded to Government through Superintendent, Central Prison, Viyyur as per letter No.CPV-R-GA/280/11 dated 26.11.2011. The representation of Sri. Rameshan, the detenu, was assigned Tapal No.96700 of 01.12.2011 of Home (SS A) Department. Reply to the representation was given on 15.12.2011 as letter No.88746/SS per A5/2011/Home dated 15.12.2011. In between 01.12.2011 and 15.12.2011, there were only 9 working days, 04.12.2011, 05.12.2011, 11.12.2011 and 12.12.2011 being holidays. As per the provisions of Act, the representation of this genre is to be disposed of at the level of Additional Chief Secretary, Home &_ _**W.P.(CRL).NO.93/12 S**_ _**5**_ _Vigilance. The representation of the detenu was submitted from the section on 03.12.2012 for the consideration of the Additional Chief Secretary. 04.12.2011 and 05.12.2012 were public holidays. The Additional Chief Secretary was out of station and was at New Delhi for 3 days during this period. A decision on the representation was taken by the Additional Chief Secretary on 09.12.2011, declining the request of the representation. After the public holidays on 11.12.2011 and 12.12.2011, the draft or the reply was again submitted to the Additional Chief Secretary for approval. A reply communicating the fate of the representation was given on 15.12.2011. Hence there was no willful delay. Due to the reasons stated above, the time taken for disposing of the representation (ie. 9 working days) as far as the nature of processing statutory representation of this kind is concerned, is reasonable. The reply was served on the detenu through the Superintendent, Central Prison, Viyyur.”_ The representation was given on 26.11.2011. We find that 27.11.2011 was a Sunday. The detenu was launched in the Viyyur _**6**_ _**W.P.(CRL).NO.93/12 S**_ Central Jail. It is submitted by the learned Addl. DGP that the representation was sent by post. There were three days more only in November, 2011. According to the Government, it reached the Government on 1.12.2011. Thereafter, it was sent up on 3.12.2011. We further notice that 4[th] and 5[th] of December, 2011 were public holidays. The actual decision would appear to be taken going by the files on 9.12.2011, that is on the 4[th] day from 6.12.2011. Thereafter, it would appear that it was sent up for approval and it was signed on 15.12.2011. Therefore, even though the learned counsel for the petitioner very fervently argued that the delay was not explained, we are of the view that the contention may not be justified. A representation must be considered in a genuine manner with full application of mind. It is not meant to be a mechanical exercise of power. It may take a reasonable time. In the facts of this case, we are of the view that the decision was actually taken on 9.12.2011. It cannot be said to be belated. No doubt, the communication took place after approval on 15.12.2011. 10[th] of _**7**_ _**W.P.(CRL).NO.93/12 S**_ December, 2011 and 11[th] of December, 2011 again were all public holidays. Of course, it is the case of the Addl. DGP that 11[th] and 12[th] of December, 2011 were holidays which appears to be a mistake as actually it was 10[th] and 11[th] of December, 2011 which were public holidays. The Addl. DGP also has a case that the Additional Chief Secretary was out of station on three days which he today clarifies, were on the 4[th] , 5[th] and 6[th] of December, 2011. Therefore, on a totality of circumstances, we repel the contention. 6. The next question is when the order was communicated. We have been shown the acknowledgment of the detenu on the order communicating the dismissal of the representation. The decision was taken on 15.12.2011 and it is seen to be acknowledged, though an attempt was made by the learned counsel for the petitioner to dispute the signatures. 7. The final question is whether there is inordinate delay in passing Ext.P2 order. Reliance was placed on the decision of a Division Bench of this Court in Sarojini v. Union of India (2009 _**W.P.(CRL).NO.93/12 S**_ _**8**_ ## (4) KLT 436). Therein, the Court, inter alia, held as follows: _“11. The learned counsel contends that a conjoint reading of S.10(1) and S.10(4) of the KAAPA must lead this Court to the conclusion that the order under S.10(4) must also be passed within nine weeks of the date of detention. From the plain language of S.10(1) and 10(4) or by the scheme of S.10, this contention does not appear to us to be acceptable. Time limit is prescribed for submission of the opinion of the Advisory Board. No time limit is prescribed for passing the order confirming detention under S.10(4) of the KAAPA. Of course, it does not say or imply that the Government can pass an order under S.10(4) at such time when it pleases them. The right of a person to make a representation against his detention to the Government and the Advisory Board is well recognised under Art.22(5) of the Constitution of India and S.7(2) of the KAAPA. The right to make a representation brings with it the obligation to consider the same as also the obligation to consider the same effectively, efficaciously and expeditiously. Even though no specific period is prescribed for passing an_ _**W.P.(CRL).NO.93/12 S**_ _**9**_ _order under S.10(4) confirming the order of detention, when the opinion shows that there is sufficient cause to continue the detention, it will inevitably have to be held that the detenu cannot be kept in suspended animation not knowing what order has been passed under S.10(4) of the KAAPA. If there be unreasonable and unexplained delay between the submission of the report by the Advisory Board and consequent order passed under S.10(4), certainly the detenu will be entitled to take advantage of that unexplained and unjustifiable gap of time. S.10(4) of the KAAPA further shows that when the opinion of the Advisory Board is that there is no sufficient cause for detention, the order must be passed “forthwith”. Having said so, in respect of that category of cases, it may not be irrelevant to note that such a stipulation has not been made in respect of the order of confirmation of detention to be passed under S.10(4) when the opinion shows that there is sufficient cause for detention. At any rate, we agree that the order has to be passed expeditiously after getting the report of the Advisory Board, though no specific time limit is prescribed for passing such an order.”_ _**10**_ _**W.P.(CRL).NO.93/12 S**_ 8. Learned counsel for the petitioner would submit that the nine weeks expired after giving of the information in December, 2011 itself and, therefore, the order should have been passed forthwith by the Government. We are unable to agree. What the Division Bench has held is that if the opinion of the Advisory Board is that there is no ground for detention, then the Government is obliged to pass an order releasing the detenu forthwith. 9. In this case, the opinion of the Advisory Board was that there is ground for detention. But then, he says, even then there is delay. No doubt, it has been held in the above decision that the order should be passed expeditiously. We notice that the report of the Advisory Board is dated 26.12.2011. Even if the Advisory Board were to give an opinion that there is ground for detention, it is elementary that the Government has a statutory discretion to still release the detenu. Therefore, the Government must apply its mind and it is only in a case where there is unreasonable delay that the order would become vulnerable on the ground of huge gap _**11**_ _**W.P.(CRL).NO.93/12 S**_ between the receipt of the report from the Advisory Board and the order confirming the detention. In this case, we do not see any such unreasonable delay. In the circumstances of the case, the Writ Petition is dismissed. Sd/= **K. M. JOSEPH,** **JUDGE** **Sd/= M. L. JOSEPH FRANCIS, JUDGE** **kbk.** _**//True Copy//**_ _**PS to Judge**_ # _**W.P.(CRL).NO.93/12 S 12**_